Use of Electronic Evidence in Matrimonial Dispute

If you are reading this then there are high chances that you or your dear ones are in a matrimonial turmoil and another easy guess would be that you or dear ones are acquainted and users of various technological advancements like Internet, Smartphone, Whatsapp, Facebook etc. Today if there is a matrimonial dispute, there would be some evidence available on electronic medium and in some cases more evidence in electronic form than non-electronic form. So it becomes extremely important for anyone wanting to use electronic evidence in a matrimonial dispute to understand how the electronic evidence is appreciated in the court of law.

The Laws across the world are laggards as far as utilizing the electronic evidence is concerned. In fact, till very recently the validity of electronic evidence was that of hear-say evidence, which meant that the courts were not to rely on them completely. As per Stephen Mason in his book Electronic evidence – Disclosure, Discovery and Admissibility, the digital evidence ought to be subjected to a more rigorous mechanism that would normally be assigned with the document extant on physical media.

For electronic evidence to be legally recognized, it needs to be

Admissible

Authentic

Complete

Reliable

Believable

Contemporaneous

The act applicable in India is Indian Evidence Act, 1872, which has been suitably amended to include digital evidence since 2009. The important sections for understanding how electronic evidence is treated are :

Section 22A: Oral admissions as to the contents of electronic records are not relevant

Section 45A: Opinion of Examiner of Electronic record.

Section 65A and Section 65B: Admissibility of Electronic records

Section 88A: Presumption as to electronic messages

Few common scenarios where a person unaware about law may destroy or not utilize the electronic evidence available:

Call Detail Records (CDRs): Any conversation on mobile between two people can be circumstantially proved basis CDRs and as per law governing Intermediaries providing these services, they have to keep these details with them for at least 1 year. These are not the call recordings but just the information on time, date, place and duration of the call. So if you have to prove that your spouse spoke to you on a particular day and she was in her parent’s house, this might be the golden arrow you were looking for. A good explanation by Delhi High Court on usage of CDRs as evidence is given in

Voice/Video recording: Here the best option is to keep the media in the original storage only, for production in court. Else, there are cyber forensics labs which can provide you a certificate of any copy you make of the original, and that certificate may be produced along with the copy, while you can keep the original safe. So if you had a confession of your spouse and its recorded in your smartphone, please keep that phone safe and don’t delete those files or change their location. The hash tag values in the properties may change which may make this important piece of evidence useless in court of law. Excellent explanation of how recorded conversation may be used as evidence is found at

Email/ Whatsapp/ Facebook messages: These are the trickiest to prove. Not only you need the Internet provider to provide you details that the messages originated from a particular IP but also need help from Google/Facebook for them to provide the IP of the sender and receiver of the messages. Though under obligation of court order, they will comply but as per section 88A of Indian Evidence Act, the court shall not make any presumption as to the person by whom such message was sent.

This is a primer and not an exhaustive commentary on electronic evidence and the idea is create awareness around usage of electronic evidence in matrimonial disputes.

1 Comment

Don’t agree with the email, whatsapp or facebook messages. The best way would be to confront a party during examination/cross-examination by logging into the relevant account in front of court, asking witness to read the detail of mail/message. It is contemporaneous to the extent that it’s happening in real time as against a stored record for which the onus should be on the other party that in normal course of action, it can be tampered with easily, my two cents.